https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10330

**REPUBLIC OF KENYA** **JURISDICTION:** IN THE HIGH COURT, BUNGOMA. **FILE NUMBER:** HC CIVIL APPEAL No. E011/2025. **BETWEEN:** WHITE HORSE CARRIERS’ Vs AYUB EMOPUS. **CORAM:** R.K. ONDIEKI- JUDGE **DELIVERED:** 18th JUNE, 2026. (*Being an Appeal against the Judgment by Hon. J.O. Manasses in Sirisia PMCC No. E131 of 2024, Delivered on 23rd January, 2025).* 1. **Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing.** Lord Simon’s speech in *Watt Vs. Thomas [1947] AC, 484* at p. 485 is recorded that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight**.** Lord Simon further said, that apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. 2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. 3. In *Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123,*it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. 4. In Bundi Marube Vs Joseph Onkoba Nyamuro[1982-88]IKAR, Hancok J A, said that a court of appeal will not normally interfere with a finding of fact by the trial court unless, it is based on no evidence, or on a representation of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching he findings he did. 5. In the case of Rahma Tayab & another Vs Anna Mary Kinamu [1982-88]1KAR 90 Law JA stated that anappellate court will be shown to interfere with a judge’s findings of fact based on his assessment of the credibility and demeanour of witnesses who have given evidence before him. 6. ***Ayub Ikwara Omopus(PW1*) adopted his written statement dated 10th June, 2024 and the exhibits 1 to 11 filed on the even date. Further, he told court that he has not fully healed. Under cross examaintion, the witness said that he suffered injuries to the head, waist, chest and fracture of two phalanges of the left foot which were cut out. In re-examination, the witness produced Dr Gaya’s Medical Report as Defence Exhibit 1.** 7. **Thereafter, the Appellant closed their case. The Respondent closed their case,too, without calling a witness. Parties recorded a consent on liability at 80:20 as against the Respondent and the Appellant and closed their respective cases. They filed written submissions.** 8. **In the Judgement delivered by the Learned Magistrate on 23rd January, 2025, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;** 1. **That the learned Trial Magistrate erred in law and fact in adopting the wrong principles in assessment of damages payable to the Respondent thereby arriving at an erroneous decision.** 2. **That the learned Trial Magistrate erred by law and fact in awarding Kshs800,000/ for general damages which was manifestly excessive in view of the injuries sustained by the Respondent** 3. **That the learned Trial Magistrate erred in law and fact by awarding more than the Respondent prayed for in his submissions** 4. **That the learned Trial Magistrate erred in law and fact in considering injuries that were not pleaded by the Respondent in his Plaint.** 5. **That the learned Trial Magistrate erred in law and fact by by failing to take into consideration and or be guided by relevant authorities and or precedents with comparable injuries to ones sustained by the Respondents thereby awarding excessive damages.** 6. **That the learned Trial Magistrate erred in law and fact by failing to consider the Appellants submissions on quantum thereby arriving at an erroneous decision.** 9. **The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.** Analysis and Determination: 1. I have, with singleness of my mind, looked at the six lamentations by the Appellant and to my understanding, they can be collapsed into one issue for determination; **Whether or not, the Court awarded excessive damages in the circumstances.** Additionally, many are the decisions of superior courts in respect to damages awarded in personal injury claims and whereas I may not be able to sample all of them here, I shall set out a copious of superior court decisions hereunder, which will act as my anchorage even as I dive into the factual and legal matrix, and when I come to the surface, I do not lose my footing. This famous passage from Lord Morris’ speech in *H West & Son Vs Shephard, [1964] AC 326 at page 353*, reads; **“The difficult task of awarding money compensation in a case of this kind is essential a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment…Money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it must still be that amounts which are awarded are to be to a considerable extent conventional.”** 1. The Court of Appel observed in *Simon Taveta Vs Mercy Mutitu Njeru [2014] KECA 755 [KLR*] that: **“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”** 2. In the case of *Arrow Car Limited Vs Elijah Shamalla Bimomo & 2 others [2004] KECA 136 [KLR*], it was stated that: **“…It is our view that in assessment of damages the general method of approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”** 3. In *Harun Muyoma Boge Vs Daniel Otieno Agulo MGR HCCA No. 7 of 2015 [2015] eKLR,* D.S Majanja J. expressed himself thus: **- “The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”.** 4. Lord Morris in Jag Singh v Toong Fong Omnibus Co Ltd [1964] 1 WLR 1382, at page 1385, says: - **“It need hardly be emphasised that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardised or that there should be any attempt to rigid classification. It is but to recognise that since in a court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.”** 5. In the case of *Bhogal Vs Burbidge* [1975] EA, 285, it was said: “**The learned Judge in the present case made no mention of inflation. Whether or not he had it in mind there is no doubt that, had the case been heard today, “(i.e January, 1981)” the Court could have awarded Mr. Burbidge a very much higher figure.”** 6. Even more definite regarding the upward trend was the statement made by Madan JA in *Ugenya Bus Services Vs Gachoki Civil Appeal 66 of 1981*, where there was a hand injury but also the amputation of the right leg, as follows: - **“I also know that the days of small and stingy awards are gone. They were decidedly miserly in any event, like Kshs.20,000.00 for the loss of a forearm or Kshs.50,000.00 for the loss of an eye. Even without the curse of inflation, they were niggardly. I remember but ignore them. We have inflation with us. We all have to live with the exorbitance which inflation has brought into our lives.”** 7. Madan J A said in *Mohamed Juma Vs Kenya Glass Works Ltd Civil Appeal 1 of 1980, at page 3* of his judgment: **- “I treat with respect the awards of general damages for injuries made in other jurisdictions as helpful indicators. Those awards are made taking into account the socioeconomic conditions in their own country which are usually not close enough to the conditions in Kenya to be reasonably comparable. We are mature. We have to reach our own measures of damages for different types of injuries and compensations for personal loss such as will fit in with the demanded, the conditions, the exigencies, the circumstances and our peculiarities so that they will groove in realistically with the pattern of life in Kenya.**” 8. In respect to the issue of quantum, I note that the current thought on damages of injuries sustained by the appellant, and the fact we have too much money facing few goods in the market, is evidence enough that inflation, is a crucial factor for consideration. I note that in the judgement, the learned Magistrate did not refer to any decision as a guide for the purposes of comparison of the similar injuries and comparable awards. Instead, thereof, I find the appellant has catalogued decisions of almost the same injuries as those suffered by the Respondent. However, I note that they cover the years 2016 and 2019 and consequently, they do not reflect, the economic situation in Kenya, today. 9. Before I close, I want to comment on this complaint that the Trial Magistrate awarded a figure higher than that proposed by the Respondent. The law is clear, in respect. In the case of *Malawi Railways Limited Versus Nyasulu [1998] MWSC*, the Court stated; **“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rule of pleadings …… for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he had to meet and cannot be taken by surprise at the trial. The court itself is bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice. In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called ‘Any Other Business’ in the sense that points other than those specific may be raised without notice.”** 10. I say no more. 11. Taking que from the expansive reasoning of analysis in the aforementioned precedents, I opine that a trial magistrate is obligated in assessing quantum, to consider, the current awards in respect to similar injuries. This reasoning is not captured in the Judgement of the Learned Magistrate. For that reason alone, I find that the quantum was excessive. 12. Putting all these together, I make the following orders; 1. The quantum awarded by trial magistrate is hereby set aside and replaced with a figure of Kenya shillings Five Hundred Thousand (Kshs500,000/) as general damages. 2. Costs of this appeal to the appellant. Delivered virtually this 18th June, 2026 in the presence of the Appellant, the Respondent and Brian- Court Assistant. Orders Accordingly. Delivered virtually this 18th June, 2026 in the presence of; Brian-Court Assistant Mr Juma holding brief for Counsel for the Respondent. Ms Kemuma for the Appellant. **Hon. R.K. Ondieki.** **Judge.**